Cheong v. Antablin
97 Daily Journal DAR 14317, 946 P.2d 817, 16 Cal. 4th 1063 (1997)
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Rule of Law:
Under the doctrine of primary assumption of risk, a participant in an active sport owes a duty to coparticipants only to refrain from intentionally injuring them or acting recklessly, not for simple negligence, and a local ordinance establishing skier duties does not alter this common law rule unless it clearly expresses an intent to modify tort liability.
Facts:
- On April 11, 1991, Wilkie Cheong and Drew R. Antablin, longtime friends and experienced skiers, were skiing together at Alpine Meadows in Placer County.
- Antablin was skiing faster than he was comfortable with and felt he was going too fast for existing conditions.
- Antablin turned to his right in an effort to slow down, regain control, and stop.
- Cheong and Antablin collided, and Cheong suffered injuries.
- Antablin denied intentionally colliding with Cheong or acting recklessly.
- Cheong conceded in his deposition that he did not believe Antablin acted recklessly.
Procedural Posture:
- Wilkie Cheong sued Drew R. Antablin in the superior court (trial court) for general negligence.
- The superior court granted Antablin's motion for summary judgment, finding that a collision was an inherent risk of downhill skiing and that primary assumption of risk barred Cheong's recovery, further ruling that a Placer County ordinance did not create a valid cause of action.
- Cheong appealed the superior court's judgment to the California Court of Appeal.
- The Court of Appeal affirmed the superior court's judgment, concluding that Cheong and Antablin were coparticipants and that Antablin did not act recklessly, thus the defense of primary assumption of the risk applied, and the local ordinance did not impose a duty of care irrespective of Knight v. Jewett.
- Cheong filed a petition for review with the California Supreme Court to address the issue of the ordinance's effect.
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Issue:
Does an injured skier have a valid tort action for simple negligence against a fellow skier, and does a local ordinance imposing skier duties abrogate the common law doctrine of primary assumption of risk in California?
Opinions:
Majority - Chin
No, an injured skier does not have a valid action in tort against an uninjured skier for simple negligence, and the Placer County ordinance does not alter this rule. The court reaffirmed the principles of primary assumption of risk established in Knight v. Jewett, holding that coparticipants in an active sport owe a duty only to avoid intentionally injuring others or acting with reckless disregard for safety, not for ordinary careless conduct. Collisions are an inherent risk of downhill skiing. The Placer County Skier Responsibility Code, while establishing various skier duties, does not clearly intend to modify common law assumption of risk principles for tort liability between skiers. Instead, it expressly states that skiers assume inherent risks, including collisions and a skier's failure to ski within their ability, which is consistent with Knight. Furthermore, the ordinance does not create a cause of action through Evidence Code § 669 because the injured skier is not within the class of persons the ordinance was adopted to protect, given its explicit embrace of assumption of risk.
Concurring - Mosk
I concur in the result. Participants in an active sport generally have no duty to coparticipants to refrain from normal activities of the sport. The Placer County ordinance does not displace this no-duty rule from Knight; rather, it embraces it by stating skiers assume inherent risks, including collisions. I would analyze the issue as a question of 'duty' rather than 'primary assumption of risk.' I believe that a different statute discussed in Ford v. Gouin, the Harbors and Navigation Code, did prescribe a duty of care that would displace the no-duty rule, leading to tort liability for negligence in that context. I also question the suggestion that a local ordinance may not establish a local duty giving rise to tort liability.
Concurring - Kennard
I concur in the result. I disagree with the Knight plurality's proposal to abandon the traditional doctrine of voluntary assumption of risk. Instead, I would resolve the issue by applying the traditional doctrine, which holds each person accountable for the normal and expected consequences of a freely chosen course of conduct. Under this doctrine, collisions are an expected risk of downhill skiing, and Cheong's long experience and informed choice to ski would establish the defense of voluntary assumption of risk, thus entitling Antablin to summary judgment. This case highlights the inconsistencies arising from the Knight plurality's approach, particularly regarding how legislatively imposed duties interact with the 'no-duty-of-due-care' rule.
Concurring - Werdegar
I concur with the majority's reasoning and result. While the majority found it unnecessary to resolve how Evidence Code section 669 (section 669) may affect a plaintiff's burden of proof in this context, I disagree with the suggestion in Justice Chin's separate concurrence that section 669 does not affect assumption of risk principles. Section 669 codifies negligence per se and has long been understood to affect a plaintiff's burden of proof regarding the existence of a tort duty, not just the adequacy of conduct. 'Due care' in section 669 means the care 'due' in the context governed by the relevant statute or ordinance, meaning a presumption of a breach of duty can arise when a statute defines the standard of care. Therefore, if a plaintiff is in the class protected by a statute, section 669 could transform that statute into a legal duty of due care.
Concurring - Chin
I concur in the majority opinion I authored and write separately to provide an additional reason to reject the plaintiff’s argument under Evidence Code section 669(a). I would hold that section 669(a) does not affect the assumption of risk principles established in Knight. Section 669(a) is an evidentiary rule that creates a presumption of simple negligence only, not a rule of tort liability or duty. Since Knight holds that participants in an active sport can only be held liable for reckless behavior or intentional injury (a reduced duty), a presumption of mere negligence from section 669(a) is insufficient to establish liability in cases governed by Knight. The Legislature has the power to modify Knight, but whether a statute has done so must be determined from the statute itself, not merely by satisfying the elements of section 669(a). I also reserve judgment on whether a local ordinance can modify a statewide common law rule like Knight.
Analysis:
This case significantly reinforces California's application of primary assumption of risk in active sports, making it difficult for participants to sue each other for injuries resulting from ordinary negligence. It clarifies that general safety ordinances or statutes, even those specifying duties, will not easily override this defense unless they demonstrate a clear intent to modify common law tort liability and specifically protect the injured party. The fragmented opinions, particularly regarding Evidence Code section 669, highlight an ongoing judicial debate about how statutory violations interact with the reduced duty of care in primary assumption of risk cases, indicating potential areas for future legislative clarification or judicial interpretation. This decision maintains a policy favoring vigorous sports participation by limiting litigation for inherent risks.
